Surprisingly little has been written on Florida’s medical necessity defense, although the Amendment 2 campaign to legalize medical cannabis prompted some renewed discussion of the doctrine. Still, medical necessity remains a barely examined and rarely applied legal concept in Florida. It could gain importance as barriers to cannabis use, both recreational and medical, continue to tumble throughout the country.

Florida’s medical necessity defense has received scant attention.

In the 1991 case of Jenks v. State, 582 So. 2d 676 (Fla. 1st DCA 1991), a Florida appellate court recognized that the common law defense of necessity may permit medical uses of marijuana. The court held that for the defense to be valid, a defendant must prove three elements:

1. That the defendant did not intentionally bring about the circumstance which precipitated the unlawful act;

2. That the defendant could not accomplish the same objective using a less offensive alternative available to the defendant; and

3. That the evil sought to be avoided was more heinous than the unlawful act perpetrated to avoid it.

The present home of the First District Court of Appeal, which recognized the defense of medical necessity in 1991.

Jenks involved the criminal prosecution of a couple with AIDS who grew marijuana to relieve their symptoms, including nausea. The appellate court found the defendants had proven medical necessity at trial, and therefore reversed their convictions. The court had no trouble finding each of the three required elements were satisfied. As the opinion notes:

1. The Jenks did not intend to contract their medical condition;

2. There was no treatment other than cannabis which could effectively relieve their symptoms; and

3. If their symptoms could not be controlled, the Jenks’ lives were in danger.

At a time when cannabis is gaining ever widening acceptance as a medicine throughout the country (even while Florida continues to treat it as an illegal substance), Jenks raises some important issues.

As to the first element, most patients, like the Jenks, do not intend to contract their illnesses.

And as to the third element, as more states recognize cannabis as a legal medicine (there are now 23 plus the District of Columbia), it becomes increasingly harder to make the case that patients with debilitating conditions should be denied access to an effective herbal remedy because of some countervailing “evil.”

At trial, Dr. Thomas Sunnenberg testified on behalf of the Jenks.

That leaves the second element: whether the defendant could accomplish the same objective using a “less offensive” alternative to cannabis. What does this mean exactly? In Jenks, the couple’s doctor testified to the existence of a legal medication (Reglan) which is “a little more effective than marijuana” at alleviating nausea, but he also testified that it had to be administered intravenously in large doses, posing a risk of infection to AIDS patients. Thus, it seems fair to say that under Jenks, cannabis need not be the only treatment possible. The medical necessity defense may still be proven in cases where the alternative to cannabis has a substantial downside to the patient.

What kind and how much of a downside must be shown is not entirely clear from Jenks. But it is safe to say that proving this element of the necessity defense is much easier in 2015 than it was in 1991. For starters, there is now a large and expanding body of patients, caregivers, and medical professionals outside of Florida who may provide testimony as to the advantages of cannabis over other possible remedies. There is also a growing body of published research demonstrating the relative virtues of cannabis. For example, consider a recent Johns Hopkins study concluding that in medical marijuana states, the annual number of deaths from prescription drug overdose is 25 percent lower than in states where marijuana remains illegal. Given cannabis’s well-documented safety record (no deaths directly due to acute cannabis use have ever been reported), such research makes it supremely difficult to argue that the commonly prescribed alternatives for pain management are “less offensive.”

The longer the prohibition on cannabis persists in Florida, the more likely it is that cannabis patients will assert the medical necessity defense in the event of prosecution. And as time goes on, the likelihood of prevailing on such a defense will increase in any given case, given the accumulation and expanding availability of evidence showing the advantages of cannabis in contrast to alternatives. The availability of the medical necessity doctrine therefore presents the potential for de facto legalization of medical cannabis in Florida on a judicial, ad hoc basis. While such a possibility would bring relief to some patients in the short-term, it is plainly deficient as a long-term policy outcome. Litigation is an expensive and uncertain process ill-suited to determining a subject as critical and complex as the regulation of medicine for patients with debilitating conditions. Such regulation should only proceed legislatively, as has occurred in the 23 states which have already approved medical marijuana.

The uncertain potential of the medical necessity doctrine should spur the Florida legislature to follow suit.

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I know your administration has much to think about in the wake of Tuesday’s midterm elections, which by any account were a difficult event for your party. But one issue, at least, should be a no-brainer.

The time has come to remove cannabis from Schedule I of the federal Controlled Substances Act.

As the most stringently restricted category of controlled substances under federal law, only Schedule I drugs cannot be prescribed by a doctor. Congress designated cannabis as Schedule I almost 45 years ago. To qualify for such treatment under the U.S. Code, a drug must have each of three attributes: (1) a high potential for abuse; (2) no currently accepted medical use in treatment in the United States; and (3) a lack of accepted safety for use under medical supervision. Other substances in this category include heroin, LSD, and MDMA (“ecstasy’). Drugs in the less restrictive schedules include cocaine, methamphetamine (“meth”), and phencyclidine (“PCP” or “angel dust”) (all Schedule II), and opium (Schedule V).

Mr. President, the federal view of cannabis simply does not accord with reality.

This Election Day, at the same time Democrats were getting trounced around the country, voters across geographic and partisan divides declared their overwhelming support for the legalization of marijuana. Voters in Alaska, Oregon, and the District of Columbia approved ballot measures allowing them to join Colorado and Washington as states where cannabis is legal for all purposes. Meanwhile, 23 states already have laws on the books permitting the use of cannabis as a medicine. And in Florida, 58% of the electorate voted to amend the state constitution to allow medical cannabis. This was not sufficient to pass the ballot measure under an odd provision of Florida law requiring 60% support, but still amounted to half a million more votes than Governor Rick Scott received in winning re-election.

With nearly half of the country now living in states which have legalized marijuana at least for medical purposes, it is no longer accurate to state that there is “no currently accepted medical use in treatment in the United States” — if this was ever true to begin with. But that is exactly what maintaining cannabis on Schedule I means. Besides being dishonest, this status engenders a constant menace of federal arrest and prosecution for patients and caregivers, even for those living in states where distribution and use is legal and regulated at the state level. It also impedes much-needed scientific and medical research.

Earlier this year, you and outgoing Attorney General Eric Holder went on record suggesting that while your administration would work with Congress to re-schedule cannabis, it is ultimately Congress’s decision to make. But this is incorrect and amounts to passing the buck. While it is true that Congress may enact a law to take cannabis off Schedule I, it is also true, under the Controlled Substances Act, that “the Attorney General may by rule . . . remove any drug or other substance from the schedules if he finds that the drug or other substance does not meet the requirements for inclusion in any schedule.” In other words, your administration can and should take immediate steps to remove cannabis from Schedule I. You need not wait for Congress to act.

The time has never been more pressing for your administration to take quick and decisive steps to remove one of the most imposing barriers between critically ill patients and safe, effective medication. Such action would have an immediate, positive impact on the lives of millions of Americans. Even in places like Florida, where use and possession of cannabis remains a crime under state law, rescheduling cannabis will go a long way toward destigmatization — witness the fact that 58% of Floridians voted for medical cannabis even in the face of an aggressive and well-funded propaganda campaign promoting fear and misinformation around marijuana to a degree not seen since the 1930’s.

Mr. President, on November 5th, you told us, “To those of you who voted, I hear you.” The voters you hear emphatically support the legalization of cannabis. What better way to re-connect with Americans — and cement your legacy — than by answering their call.

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Amendment 2 has received 57.5% yes votes at latest count, with over 95% of the votes recorded. It takes over 60% to amend the Florida Constitution. This means that Amendment 2 will not pass, and cannabis will not be legalized for medical purposes in Florida.

But let’s take a closer look at these numbers.

Amendment 2 received at least half a million more votes in Florida than did either major party candidate for governor.

Amendment 2 won a greater percentage of the electorate than Franklin Roosevelt did nationally when he cruised to a historic landslide victory over Herbert Hoover in 1932.

Amendment 2 nearly matched the percentage of the popular vote received by Ronald Reagan in his sweeping victory over Walter Mondale in 1984.

If today’s election were being held in 2005, Amendment 2 would have soared to victory. This is because prior to 2006, a proposed constitutional amendment required only a simple majority to pass. Then in 2006, the threshold was increased to 60% through the efforts of Florida’s Republican-controlled legislature and a big business-financed ballot initiative.

All of this is to say the Amendment 2 campaign won a stunning victory today. Especially in light of the onslaught of fear and misinformation financed by Las Vegas billionaire Sheldon Adelson in an attempt to defeat the measure at all costs. In spite of this, over 57% of Floridians stood up and voted to legalize medical cannabis.

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Should Amendment 2 go down in defeat on Election Day, the people of Florida will have some thinking to do.

Amendment 2 would legalize the use of cannabis, with a doctor’s approval, as a treatment for patients with debilitating medical conditions including cancer, AIDS, Lou Gehrig’s disease, and multiple sclerosis, among others. In January of this year, the Florida Division of Elections announced that the proposed amendment had recorded over 786,000 signatures, well in excess of the amount needed to qualify for the ballot. Later that month, the Florida Supreme Court approved the amendment’s language.

In July, a Quinnipiac poll showed support for Amendment 2 at 88% of Floridians – well in excess of the 60% needed to pass a state constitutional amendment. This level of support was consistent with prior Quinnipiac studies conducted in November 2013 and April 2014, and aligned with the broad-based, high approval ratings in polling by a number of other organizations.

But the numbers started dipping over the summer and then dropped off a cliff. The latest polling suggests the measure will fail, and possibly not even win half of the electorate. The abrupt change in tide coincides with one factor – an influx of $5 million into the anti-Amendment 2 campaign from a Las Vegas casino billionaire named Sheldon Adelson, who has well-documented ties to Governor Rick Scott and happens to be one of the GOP’s largest donors. According to the Washington Post, this means that 85% of the campaign spending against Amendment 2 has come from the fortune of one man who does not even live in Florida.

With Adelson’s millions in hand, opponents of the measure have been able to fill the ether with advertisements spreading a degree of fear and misinformation around cannabis not seen in this country since the days of “Reefer Madness,” the much-satirized propaganda film produced in 1936. The Vote No On 2 website, for example, diagrams a dystopian fantasy in which convicted drug dealers are allowed to freely distribute marijuana to anyone who wants it, including young children, at “seedy pot shops” right next to schools and churches. The heading proclaims – “Amendment 2: The Devil Is In The Details” – echoing another propaganda film from 1936 titled “Marihuana: The Devil’s Weed.”

What shocks the conscience is not so much that opponents of a ballot initiative would stoop to inflame base and superstitious instincts. No, what is outrageous is that the Adelson propaganda campaign is taking place in the year 2014 while being funded almost entirely by one person — and not even a Florida resident at that. Today, cannabis is legal for all purposes, not just medical, in Colorado and Washington. Twenty-one additional states as well as the District of Columbia have legalized cannabis for medical treatment, with California the first to do so back in 1996. In all of these states, there are sensible regulations governing the sale of cannabis to ensure public safety. Needless to say, almost half of the United States – which, by the way, includes Adelson’s home state of Nevada which legalized medical cannabis 13 years ago – bears no resemblance to the veritable Sodom and Gomorrah portrayed in the Vote No On 2 campaign. Despite what one billionaire GOP donor in Las Vegas wants Floridians to think, cannabis is gaining widespread acceptance as a safe and effective medication for a host of serious diseases and conditions.

Perhaps most egregious of all, Sheldon Adelson cannot possibly believe the lies his money is propagating. Indeed, some of the most important research showing the ability of cannabis to alleviate the symptoms of multiple sclerosis has come from faculty at an Israeli university research center founded by Adelson and his wife. And in fact, expanding the medical potential of marijuana appears to be one of the core missions of Tel Aviv University’s Dr. Miriam and Sheldon G. Adelson Center for the Biology of Addictive Diseases. Its website states,

Marijuana has long been known to relieve pain and nausea, but the medical benefits may in fact be much more significant. Researchers at the Adelson Center are finding major medical properties in marijuana that could affect the way neurodegenerative diseases and brain injuries are treated.

So consider these facts. The process by which Florida’s citizens vote directly on whether to amend the state’s constitution is likely the purest democratic feature of our system of state government. If support for a given proposition can attain 60%, the voters may take a detour around the legislature and governor and, on their own, enact new law. Less than 4 months ago, 88% of those surveyed favored legalizing cannabis as a medicine in Florida. And yet, in that brief time span, if the polls are to be believed, almost half of these Floridians have changed their minds – following an onslaught of false advertising bankrolled by an out-of-state gambling magnate whose own philanthropy funds academic research supporting medical cannabis.

This appears to be more like an attack on democracy by a narrow monied interest than a bona fide process for implementing the will of the people of Florida or a good-faith effort to promote a fair-minded discussion on medical cannabis. And now the assault appears to have a strong chance of depriving severely ill Floridians of medicine, despite the fact that much of the country has already emerged from an attitude toward cannabis characterized by unfounded hysteria and an expensive, failed War on Drugs. (And even if Amendment 2 does manage to collect the necessary 60% of votes, the drop in support will be evidence on its own of the pernicious effect of no-spending-limits politics).

Step by step, our country is steadily moving toward a new era marked by empathy, compassion, tolerance, and reasoned belief. One day, Florida will join that trend in the area of medical cannabis. But if that day isn’t November 4, 2014, Floridians will be left to wonder in the interim just how democratic their institutions have become. When it approved the language of Amendment 2, the Florida Supreme Court cited an opinion of the court from 1958, when it stated, “There is no lawful reason why the electors of this State should not have the right to determine the manner in which the Constitution may be amended.”

Should Amendment 2 falter, the electors of Florida will have to wonder whether that promise has become hollow.